South Africa: The Draft IP Policy: Not Staying Out Of Harms’ Way

We have discussed the recent Draft National Policy on
Intellectual Property, 2013 ('the Policy') in a separate
article. Shortly after its release, one of South Africa's
foremost IP experts, Louis Harms, produced a written comment on the
Policy. Harms, a former Deputy Judge President of the Supreme Court
of Appeal, is now a professor of IP law at the University of
Pretoria.

Harms suggests that the Policy recognises the fact that
different government departments have different views on IP. The
impression created by the Policy, he says, is that the Department
of Science & Technology is pro-IP, the departments of Health
and Education anti, and the DTI ambivalent. This, he says, is no
surprise, because IP rights are so very different, and they serve
very different interests. Which is obviously true
- the interests of the inventors and scientists who find
patents attractive may be very different from the interests of the
musicians and writers whose livelihoods depend on copyright, and
different again from those entrepreneurs who believe
that it is their brands (trade marks) that power their
businesses. Harms makes the point that he's not one of
those who believes that IP rights need to be extended. On the
contrary, he feels that copyright 'requires a proper hair
trim'.

Harms makes the point that , although our IP laws are based on
local statutes, these are largely based on international
conventions. At the heart of these international conventions
is the concept of national treatment, and what this means is that
no country can discriminate against foreigners.
Developing countries - who are invariably net importers of IP - do
however seek to limit IP rights in order to stem the flow of
royalties out of their countries. What these countries must
realise, says Harms, is that the concept of national treatment
requires them to similarly limit the rights of their own people. To
use a simple example, if a state wants to amend its copyright
law to allow for the photocopying of foreigner's works,
that law must similarly allow for the copying of works created by
locals. This may, of course, stifle local creativity!

Although Harms accepts the general idea that IP policy must
serve the interests of the country, he takes issue with the
statement that it must be done from the standpoint that South
Africa is a developing country 'with the bare minimum of a
technological, economic or social base.' A statement like
this is hardly going to achieve one of the objects of the Policy,
which is to 'engender confidence and attract
investment'. Harms is also sceptical of claims that
South Africa must follow the lead of 'similar economies
such as Brazil, India and Egypt.' One what basis
were these countries selected, asks Harms, two are BRICS countries
but one is not, and two other BRICS have been left out? And why not
align with sub-Saharan countries, or countries that have a British
law background like we do?

Harms talks briefly about the suggestion that we move to a
patent examination system, saying that he has nothing against this
in principle, but that he queries whether we have the capacity to
do it. He does, however, question whether patent examination might
harm local companies, in that a time-consuming process may deter
them from patenting. He's perplexed by the suggestion that
search and examination might co-exist with the current deposit
system. 'Does it mean that some patent applications will be
examined and others not? Is there a hidden agenda
somewhere?'

For the most part, Harms is critical of the Policy. He feels
that it's short on substance, and full of nice-sounding but
unexplained remarks, for example the one that South Africa
must ensure that pharmaceutical patents do not impede health care,
and the one that copyright does not limit access to
knowledge. He says that no priorities are listed, there are
no time frames, there are no cost estimates, and there's no
data (empirical or even anecdotal) to support many of the
claims. He makes this comment, which will no doubt be quoted
widely: 'One cannot escape the conclusion that as policy it
promises candy-floss: it is very sweet but it becomes sticky if you
touch it and it disintegrates on eating, leaving no
aftertaste.'

Harms complains that the Policy fails to address the real
issues. For example, statistics show that patent activity in South
Africa is stagnant, whereas in countries like Australia, China and
South Korea it's very much on the up. And even worthy
South African initiatives, like the patenting in 1995 by the CSIR
of the ingredient in hoodia that suppresses appetite, P57, benefit
no-one – the product's apparently still not close to
commercialisation despite the fact that the patent expires in two
years, and the only suggestion the Policy has is that the MCC
should get its act together.

Harms is critical of the fact that there was no public
consultation before the document was drafted, no
intra-departmental consultation, and no request for outside expert
advice. He's also surprised that no account was taken of
recent international moves to create fair use copyright exceptions
for the visually impaired (the Marrakesh Treaty). Harms can't
resist a dig: 'The only conclusion is that government
intends to keep its eyes closed.'

Harms is critical of the drafting of the Policy:
'Considering that this document is for international and
not only local consumption, it is unfortunate that while much in
the policy has merit the document was not drafted with
care.' But his most damaging criticism is this:
'Embarrassingly, the policy document shows some lack of
appreciation of South African IP law.' Harms has examples
aplenty.

On the patent front, he points out many errors: the Policy
mistakenly believes that there is a 'newness'
requirement in addition to a 'novelty'
requirement; it suggests that patent law should in
future exclude 'diagnostic, therapeutic and surgical
methods from patentability' when it already does; it
suggests that we should not allow for patenting of animals or
plants when we don't; and it says that 'patent
enforcement is dealt with under health and SAP
legislation' , when in fact 'neither
"health" nor the police have anything to do with patent
enforcement.' It also fails to appreciate that generic
medicines can be illegal when they are sold under counterfeit trade
marks.

It's not limited to patents. Harms takes issue with
the statement that fashion designers should be allowed to make use
of the design registration system when they can. He says that the
Policy refers to a 'Trade Mark Tribunal', a body
that doesn't exist. He points out that the authors of the
Policy don't seem to appreciate the difference between two of
the major IP conventions that South Africa is subject to, the Berne
and Paris Conventions: 'What can one say: an official
document on IP that does not recognise the difference between the
Berne and Paris Conventions.'

Harms ends in a more conciliatory tone: 'No one can
argue with most of the "broader objectives"... all are in
favour of the empowerment of our people, the development of the
economy, synergy between IP and government policies...the devil is
sometimes in the detail and sometimes in the lack of
precision.' But he remains irked that we haven't
looked elsewhere for guidance: 'Other countries have
grappled with the issues and there is much to be learnt from them.
But then, a peek at the rest of Africa, Singapore, Hong Kong and
Australia is discouraged. How sad.'

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